Shivdayal Sinha Vs State of Chhattisgarh

This appeal is directed against the impugned judgment of conviction and order of sentence dated 28.11.2024 passed by the Ninth Additional Sessions Judge, Raipur in S.T. No. 38/2024 whereby the appellant in the aforesaid appeal has been held guilty of the commission of offences and sentenced as described below :

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Conviction	Sentence
U/s. 307 IPC	Undergo RI for seven years and to pay fine of Rs. 1,000/- in default of payment of fine to further undergo RI for oneyear
U/s. 323 IPC	Undergo RI for 6 months and pay fine of Rs. 500/- in default of payment of fine to further undergo RI for 15 days
U/s. 323 IPC	Undergo RI for 3 months and to pay fine of Rs. 500/- in default of payment of fine to further undergo RI for 15 days

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All the sentences were ordered to run concurrently.

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The prosecution story, as unfolded from the records of the case and judgment impugned, is that on the date of incident ie. 13.11.2023, at about 5.00 pm, the appellant hurled abuses and caused grievous injuries to Sushila Dheewar, Resham Dheewar and Amit Dheewar. It is alleged that the appellant came to the shop of the complainant Amit Dheewar and was hurling abuses and when he asked him not to abuse, he assaulted with hands and fists which was intervened by his brother Resham Dheewar and he was also assaulted by the appellant with the window plank. Thereafter he threatened them to kill and went to his house and brought a spade and chased Resham Dheewar which was intervened by his mother Sushila Dheewar and he assaulted her with spade on her and she fell unconscious. Thereafter, son of the appellant chased the brother of the complainant and assaulted him with club whereas the appellant assaulted with spade. The injured were treated at Sadbhawna Hospital, Naya Raipur. On the basis of the complainant lodged by the complainant Amit Dheewar at police station Rakhi, District Raipur, offence against the appellant and his son who was a

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juvenile at the time of incident was lodged under Sections 294, 323,307,34 IPC and FIR Ex.P-1 was registered. The injured were medically examined vide Ex.P-9 and P-10 and the reports were sent to Govt. Hospital, Rakhi and the MLC report is at Ex.P-11 and 12. During investigation, spot map was prepared vide Ex.P-2. On the basis of memorandum of accused/appellant, the iron spade was seized from his house vide Ex.P-8 and arrest memo Ex.P-5 was prepared, after giving information to th family members vide Ex.P16=5, the he was arrested. The blood stained clothings of the injured Sushila Dheewar were seized vide Ex.P-4. Seized articles were sent to the Forensic Science laboratory vide Ex.P-19 and the FSL report is Ex.P20. After completion of investigation, charge sheet was filed before the court of Chief Judicial Magistrate Raipur and thereafter the case was committed to the Sessions Judge, Raipur

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The appellant was charged for the commission of offence under Sections 294, 323, 307,34 IPC. The appellant denied the charges and claimed to be tried.

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Prosecution examined as many as 7 witnesses in support of its case. Appellant was examined under Section 313 Cr.P.C. in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

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Learned trial court after appreciation of evidence available on record, convicted and sentenced the appellant as stated above by the impugned judgment. Hence this appeal.

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Counsel for the appellant, assailing correctness and validity of the impugned judgment of conviction and order of sentence, argued that the entire case of the prosecution is contrary to the law and facts available on records. He submits that the trial court erred in convicting the appellant only on the basis of assumption and presumption. The prosecution case is based on the circumstantial evidence and there is no eyewitness to the incident and no prosecution witnesses have supported the case as alleged by the prosecution. He submits that even if the prosecution case is taken as it is, there is no grievous injury found on the person of the injured. He submits that the prosecution has failed to prove its case beyond reasonable doubt and therefore the impugned judgment of conviction and sentence is liable to be set aside. He submits that there are material omissions an contradictions in the statements of the witnesses. Lastly, he submits that the accused/appellant is in jail since the date of his arrest and that the quarrel took place all of a sudden, and in sudden provocation, the incident happened and he has no criminal antecedents therefore he may be sentenced for the period already undergone by him.

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Per contra, learned State counsel would support the conviction of the judgment and order of sentence and submit that the prosecution case is based on direct eyewitness account and they have stated regarding the incident and there is no reason as to why they should be falsely implicating the appellant.

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Heard counsel for the parties and perused the material available on record.

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Amit Dheewar (PW-1) brother of the complainant has stated that on the date of incident ie. 13.11.2023, at about 5.00 pm, appellant came to his shop and was using some abusive talk whereupon he asked him to move aside and not to hurl in front of his shop. At this, the appellant started abusing him in filthy language and when his brother asked him as to why he was abusing, he took a window plank lying over there and assaulted him and his brother and went home. After a while, he again came there carrying spade with an intention to kill. When mother of the complainant saw the incident, he tried to intervene and the appellant assaulted her with the spade and she sustained injury on her head and fell unconscious. He tried to snatch the spade from him but his son Ganesh came there and hit with a club on his head. Thereafter, they were taken to hospital Sadhbhawna, Naya Raipur and the FIR was lodged Similar statement has been made by Resham Dheewar (PW-2) brother of the complainant, Sushila Dheewar (PW-3) mother of the complainant Harbhushan Patel (PW-4) villager.

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Dr. Ankur Gupta (PW-5) is the Orthopedic Surgeon has medically examined the complainant injured Amit Dheewar vide Ex.P-10. He has also examined the injured Sushila Dheewar and gave the report vide Ex.P-9 and surgery was done by Dr. Shivani (Plastic Surgeon) at Sadbhawna Hospital. In the bed head ticket Ex.P-13, it was mentioned that she sustained injury on her nose ie, cut mark and the nasal bone was fractured and right lateral eye was also injured. Thus, it can be held that grievous hurt has been caused to Sushila Dheewar.

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On close scrutiny of the above statements of the witnesses, it can be seen that there are minor omissions and contradictions in the statement of the witnesses. Admittedly, there is no allegation of repeated or severe blows having been inflicted. Even the injuries on the complainant Amit Dheewar and his mother Sushila Dheewar have been found to be grievous in nature. Section 307, which carries a heavier punishment, refers to„ hurt? caused in pursuance of such an„ act?. The interpretation of Section 307 of the Penal Code has been dealt with in the matter of State of Maharashtra v Balram Bama Patil [(1983) 2 SCC 28], wherein it has been held that it is not necessary that a bodily injury, sufficient under normal circumstances to cause death, should have been inflicted:

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“9...To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.”

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So far as the offence under Section 323 IPC is concerned, it is submitted that the offence of voluntarily causing hurt as defined under Section 321 IPC and punishable under Section 323 IPC is concerned, it is submitted that the injuries sustained by PW-1 and PW-2 were simple in nature where as injuries sustained by Sushila Dheewar (PW-3) were simple in nature. It is submitted that as such considering the nature of the injuries, the appellant has caused voluntary hurt to Amit Dheewar and Resham Dheewar and therefore, Section 323 of IPC is made out against the appellant. The appellant had caused voluntarily grievous hurt to Sushila Dheewar on her nose upto right eye and her nasal bone got fractured and right eye also got damaged and thus, the appellant had committed an attempt to murder.

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The findings of the trial Court is based on proper appreciation of oral and documentary evidence therefore, upheld the findings of conviction of appellant under Sections 307, 323,323 of IPC and therefore no interference therewith is called for. Thus, the conviction part of the impugned judgment is maintained.

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As regard sentence part of the impugned judgment, as the incident took place between the appellant and the complainant, on account of sudden provocation and therefore, this Court is of the opinion that a lenient view, if taken would give a substantial respite to the accused/appellant. Accordingly, the sentence awarded to the accused/appellant is reduced to 5 years from that of 7 years.

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Consequently, the appeal is partly allowed. The impugned judgment of conviction is hereby maintained. However, the jail sentence imposed on appellant is reduced to 5 years from that of 7 years by him. Being already inside the jail, no order in respect of arrest etc. of the accused/appellant is required.

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Sd/-

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(Arvind Kumar Verma)

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Digitally signed
by SUGUNA
SUGUNA DUBEY
DUBEY Date:2025.05.23
13:13:12
+0530

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Judge

Shivdayal Sinha v. State of Chhattisgarh

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Shivdayal Sinha v. State of Chhattisgarh

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